Rise of the Video Vigilantes: Handling Secret Workplace Recordings

Video vigilantes are on the rise, and their recordings can quickly go viral. What should employers do to prepare for, handle and prevent covert recordings made in the workplace?

Just a few short years ago HR and ethics and compliance investigations often involved a tiny amount (if any) of hard evidence, and relied more on complex credibility assessments (he said/she said). Unless there was iron-clad evidence (like an email trail) or a very credible eye witness who actually saw something, the conclusion of an investigation often rested solely on an investigator’s judgement.

In this process, when the victim who stepped forward was told “the accused denied everything and, we are very sorry, but we don’t have enough evidence of wrong doing to take action,” their natural reaction was often to feel disrespected, deflated—and like their employer doesn’t trust their word.

Increasing Amount of Audio and Video Evidence in E&C and HR Investigations

For years employees have been creating covert audio recordings of interactions with HR and managers. In 2011, Joe Bontke of the Houston EEOC said 33 percent of all people who come in with complaints present some form of digitally recorded evidence of interactions with HR or management; plaintiff’s attorneys suggest that the number is closer to 50 percent.

While audio recordings have been around for quite a while, the new trend is all about video. Armed with a cell phone and Wi-Fi or a cellular connection, an employee can capture a moment in time with the touch of a button, and evidence of events can become rigidly fixed—and quickly go viral if the employee shares on social media.

Video Vigilantes With Social Media Savvy are Game Changers

When video finds its way into the mix, it’s next to impossible for those in power to create variations on a story, or challenge the recollection of the person who speaks up; now they must deal with evidence in the form of video.

Surely the past year’s most notable viral vigilantes are the ones documenting police brutality. Even as protests have raged in Ferguson, Baltimore, Staten Island and South Carolina, some activists say it’s not brutality that’s on the rise, but the ability to definitively record it, mostly by bystanders deploying smart phone cameras to capture incidents or their aftermaths. YouTube and social-media hashtags like #blacklivesmatter and #icantbreathe have helped outraged citizens distribute these images, immediately and globally, before official investigations could even begin. The ACLU now has an app to transmit video directly to their local office as soon as a bystander presses record, preserving a second copy should police seize the phone. It also alerts other nearby witnesses, so they too can gather video evidence.

I’d bet that, at this moment, some employee somewhere, fed up with being harassed at work or being asked to act unethically or illegally, is planning to record evidence of misconduct on video.

And it’s not just issues like police brutality—issues closer to the workplace are being documented as well. With 40 million views and counting, one of the most prominent viral videos was made by a woman dubbed “Hollaback Girl.” In case you missed it, Hollaback Girl took a walk through Manhattan with a hidden camera to raise awareness of street harassment. For ten hours she silently chronicled the 100-plus times she was verbally accosted. Unsolicited comments ranged from “Sexy!” and “Smile!” to the more aggressive “You don’t wanna talk?” Several men walked alongside her, uninvited, for blocks at a time.

The Hollaback Girl embodies the rise of the viral video vigilante, armed both with video proof of harassment and with the social media savvy to ensure that millions bear witness to it. Just as bullies have brandished digital tools to harass, now victims are using those same weapons to reclaim space from their tormentors.

Video: From Social Causes to the Cubicle

Street harassment and police brutality may seem far removed from staid corporate cubicles, but I’d bet that, at this moment, some employee somewhere, fed up with being harassed at work or being asked to act unethically or illegally, is planning to record evidence of misconduct on video. This employee sees video as the great equalizer and proof positive of what they say. It’s the victim’s way of using technology to seize back power, protect him or herself, shame the wrong-doer and garner some control over the situation.

If you are lucky the video will only be shared with your organization’s leaders who are tasked with investigating misconduct. If you are not so lucky the video will be shared with millions on the internet and with people who are willing to advocate on behalf of your employees.

Eight Ways Employers Can Prepare to Deal with Covert Audio and Video Recordings in the Workplace

So what should employers do to prepare? And how should they handle the video evidence when it comes in? (If you have additional ideas to add to the list, let us know—leave a comment here or tweet us at @NAVEXGlobal.)

Work with your attorney, and determine if you should have a policy prohibiting employees from making audio and video recordings in the workplace.

Managers interacting with employees (who are being disciplined or who are involved in a complaint) should assume that they are being recorded—especially an audio recording. There are many apps that can turn a smartphone into a high-tech recording device.

Understand the laws that apply to recording (video and voice). Laws may require consent (at least of one of the parties—which means the employee doing the recording), and most limit the ability to use hidden cameras in areas that are deemed private. In some countries the laws may be more strict.

Recognize that an employee may have a competing right to collect evidence of wrongdoing. The EEOC and some circuit courts (there is a split) have concluded that recording can be a protected activity.

Employers should carefully consider how taking a position such as “we cannot use it because it was illegally obtained” will impact with the victim—it’s not likely to be well received, especially if the misconduct is severe.

If you cannot use the video or audio recording, be prepared to investigate in a thorough manner so you are in a position to uncover proof of the wrong-doing. A cursory investigation with no real response will not likely put the matter to rest for the victim.

If you suspect that an employee may be making video or audio recordings, be prepared to talk with them. And before you meet with the employee talk to your lawyer. Secret recordings typically do not “fly solo,” as they almost always accompany other legal issues that an employer is facing or will soon face.

And finally, and most importantly, build a culture of trust and integrity—where employees don’t feel like they need a smoking gun to bring an issue forward or to protect themselves against retaliation. Do what you say, and say what you do. That is the best way to build trust with employees—and if they have trust in the system and the integrity of the organization, they are less likely to feel the need to independently prove their own case.

Conclusion

When an organizational culture is broken and people don’t trust decision-makers to be fair, they will often take matters into their own hands. Technology has enabled almost any employee to make covert recordings and share them with the world, meaning your reputation is at risk anytime, anywhere. All it takes is a video and a Wi-Fi connection.